Signed for registered letter, restricted delivery on 12/13/02. (yesterday) This was a small claims case form an attorney out of state. The court date WAS Dec 10! So this is not proper service? What are my choices here? Anyone?
Call the court that was suppose to handle the case, if a judgement has been entered against you, have it vacated.
I doubt the hearing could have gotten very far as the atty had no proof of service at that time to show the court. But definitely check anyway.
I am a law student and work in a law firm which represents defendants all the time, so I may be able to provide a little insight. I am not a lawyer yet so you may want to confirm what I say with an attorney in your state. Your state law may be different from my state's. I can tell you that service can be a very tricky thing. A lawsuit may be served either domicilary or personally. Personal service is given directly to you by the sheriff or service processor. With domiciliary service the lawsuit is given to a member of your family that is of "suitable age and discretion." That includes your 14 year old son with the nose piercing and pink hair! Talk to your family and see if they ever received anything from a deputy sheriff or person that they never told you about. Your lack of knowledge is irreleveant for not answering a lawsuit if the service was proper. The clerk of court should be able to tell when and how you were served. It sounds to me (I could be wrong so please correct me if I am) you were served with a default judgment. If you never answered the suit and you were served properly, you may be in a bit of trouble. Get a copy of the hearing trascript and minute entry for the hearing to see what went on. Maybe they did not submit enough proof of the alleged debt, I would have an attorney look at them, but you might know enough to protect yourself. If you were not served properly, you should immediately file a Motion to Vacate Judgment or Motion to Nullify Judgment based on improper service. You have very limited options if the hearing was a default judgment. In Louisiana, a plaintiff may default a defendant without notifying them until after the default is taken IF the defendant was properly served. That means you would get notice of the default AFTER the hearing in which was entered. Find out how you were served with the lawsuit. Then, find out if that service is proper under the laws of your state. If not, you should be able to nullify the judgment. If you were served with a lawsuit properly, you have limited options and should seek an attorney. If it not a default judgment, you will need to find out what happened at that hearing to protect yourself as the case is still ongoing. It may be just a preliminary default which means you still have 1 or 2 days from the date you were served with that notice to file some sort answer. Hint: Deny everything like this: The allegations of Paragraph # is denied for lack of information to justify a reasonable belief therein. Do that for each and every numbered paragraph of the complaint or petition if the case is still ongoing and you have not filed an answer. Good luck and sorry I was so lengthy.
Call the court and make sure this is not a CA "fako summons" - some of them will send fake summonses - really. Why Chat's site has a link to another site where you can check your state's rules for proper service: here's Why Chat's site http://community-2.webtv.net/Y-chat/WhyChatsCredit/ here's the other site he links to: http://www.megalawserve.com/states/rules.php
I can honestly say that is the first time I ever heard of a default judgment being vacated merely by the person saying "I did not get it." There is a strong presumption (at least here in Louisiana) that the sheriff served the papers as he stated in his affidavit at the bottom of the service citation. Very weird indeed they were able to get out of that judgment.
Thanks one and all. I was served by mail. After reading the laws of the state involved, (great post Breeze) I was served after the court date and it therefore I believe I can have it vacated. I asked the postmaster for a photocopy of the return reciept card which links the letter to the time and date of service. So I can prove that I recieved it late. I posted awhile back about this letter I had waiting at the P.O. and how I wanted to wait to the last possible minute to sign for it. Looks like it paid off! It bought me extra time and hence the service was after the fact. More luck that brains as I wanted to pay the collection. I just wanted a little extra time. A year ago I would have never thought about waiting to pick up the letter or any of the details of service ect. I would have capitulated to the CA's. What a great community we have here! I appreciate you all!
I am not trying to argue with anyone, but if you were previously served with a lawsuit and properly and never filed an answer, you were probably defaulted. In Louisiana, once you are served with a lawsuit, the plaintiff does not have to notify you he is taking a default judgment against you for not filing your answer. Lack of notice of hearing on the default is irrelevant because you are not even entitled to a hearing. If you are in a state like Louisiana, you better have a good LEGAL reason for not answering the suit after being properly served. And I sure as hell would not argue to the judge, "well Judge I decided to wait as long as I could before accepting that letter because I know it was not good." Again not arguing with you as your state may be different. I just would not get too excited until you hear the judge nullify the judgment.
He is in Alaska. There is NO other state that has laws like Louisiana. LA laws are based on something different than the other states - I can't even make sense of them, LOL. I've tried, honest.
I agree Louisiana is unique. Its because Louisiana is the only state to adopt the French, Spanish, and Roman Civil Law in the US. In Louisiana, the statutory law overrides the case law (unlike every other of the 49 states). I would like to make a suggestion to avoid future problems like this. When you served with a lawsuit just deny every allegation in each of the paragraphs, except of course your name, etc. Its called a general denial and it buys you time in the lawsuit and you will not get defaulted.
Well, Hermit didn't not answer a lawsuit. He just didn't accept the certified mail. Turns out, in Alaska, it is a good thing to do, hehe. In VA, they would have considered me served if they stuck it to the door of my last known address.
Wel when a lawsuit is initially filed, there is no hearing date. The defendant is required to answer the suit and then hearing dates are made. If the mail he refused to go get for a llittle while was probably not a lawsuit. It was a hearing of some sort. If he was served with a lawsuit and never answered that hearing was probably a default judgment he needs to try and get nullified. I do not think this hearing was held right after he was sued. I think he was served, failed to answer, and now is defaulted. Hopefully, he can get the judge to nullify the judgment. I would think his best route would be to file a Motion for New Trial, if he was defaulted, and allege lack of service and whatever evidence he has that the debt is not his. He made just get a new trial. The time dfelay for asking for a new trial in most states is 7 days. Which would give him until Tuesday to do so.
In a Motion for a New Trial or Appeal, you can overturn a default judgment. The only problem with an appeal is that the "record" on appeal will only have the evidence that the creditor admitted since you were not there. Your only hope would be that they did not submit enough proof for their claim, which is rare. A new trial is easier to get. All states have different standards for getting a new trial. Improper service is one. Check your states rules of civil procedure.
I apologize for my second to last post............ Geez... all those mistypes and I want to be a lawyer??!?!
1*Your only hope would be that they did not submit enough proof for their claim, which is rare. 2*A new trial is easier to get. rocket1977 ================== 1*What if you have a recept it was paid? 2*Why not sue the creditor for the amount of the judgment? LB 59
If you have a receipt that it was paid, you have a good chance of convincing a judge to give you a new trial. I would get the trial transcript and make sure theey FORMALLY introduced into evidence all information they needed to prove their claim. That means if the trabscript does not show the lawyer saying "Judge I admit this into evidence" or something to that effect, the evidence will not be tin the record. Also, on a motion for new trial, most states will grant the motion if the defendant can come in and show evidence that calls the claim into question. All of the above assumes there was a default judgment. If there is no judgment, there is still a pending lawsuit to answer.
[1*If you have a receipt that it was paid, you have a good chance of convincing a judge to give you a new trial. 2*Also, on a motion for new trial, most states will grant the motion if the defendant can come in and show evidence that calls the claim into question. rocket1977 ================ 1* so what happens if the judge won't grant a new trial. Does that mean that you have to pay the same bill twice even though you have the receipt showing it was already paid? If the debt's paid why would there be any need for a new trial? 2*A receipt certainly would call the judgment into question now would it not? QUOTE]Originally posted by rocket1977 If you have a receipt that it was paid, you have a good chance of convincing a judge to give you a new trial. I would get the trial transcript and make sure theey FORMALLY introduced into evidence all information they needed to prove their claim. That means if the trabscript does not show the lawyer saying "Judge I admit this into evidence" or something to that effect, the evidence will not be tin the record. Also, on a motion for new trial, most states will grant the motion if the defendant can come in and show evidence that calls the claim into question. All of the above assumes there was a default judgment. If there is no judgment, there is still a pending lawsuit to answer. [/QUOTE]
